Journal of Criminal Law and CriminologyVolume 29Issue 4 November-December Article 1

Winter 1938

Commentaries on the Wisconsin Law of ProbationEdwin C. Conrad

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Recommended CitationEdwin C. Conrad, Commentaries on the Wisconsin Law of Probation, 29 Am. Inst. Crim. L. & Criminology 449 (1938-1939)

COMMENTARIES ON THE WISCONSIN LAW OFPROBATION

EDWIN C. CONRAD*

PROLOGUE TO THE PROBATION ACT

Introduction

Throughout the official reports, many boasts are made to theeffect that the Wisconsin system of probation is one of the earliestand most progressive in the country. At the outset it must beunderstood that my purpose is not the evaluation of the system.That remains for the future. Probation laws are of statutory origin.They were unknown to the common law. It was very clearlysettled in our jurisprudence that under the common law the courtshad no power to suspend sentence in order to give the defendant achance to mend his ways.' Nevertheless, despite this lack of power,the courts of Wisconsin prior to the enactment of the present pro-bation law, had repeatedly suspended sentences.2 It had become anestablished practice for courts to suspend sentence. The evil insuch a method, however, lay in the fact that no supervision of theconvicted man was required. The granting of a suspended sentenceis not probation. The evils of the suspended sentence were to someextent eliminated upon the enactment of our present probation law.Mr. Hiller, who made quite an extensive study of our system, tracesour adult probation law back to the year 1901. This is erroneous.Our adult probation law was enacted in 1909, although juvenileprobation was adopted in 1901.

The Statutes of Wisconsin dealing with probation, namely,Chapter 57, Wisconsin Statutes of 1937, make several classificationswhich should be clearly established before we can understand theprobation act itself. The two principal classifications are as follows:(1) Adult Probation; (2) Juvenile Probation. Since our law care-fully distinguishes between persons convicted of felonies and those

* Member of the Wisconsin Bar, Madison, Wisconsin.1Warner and Cabot, "Changes in the Administration of Criminal Justice Dur-

ing the Past Fifty Years, HvAR LAw RHvivw, 50:598, Feb., 1937.2Hifler, Francis H., Probation in. Wisconsin, New York, 1926, pp. 25-26.3 Ibid., p. 37.

[449]

450 EDWIN C. CONRAD

convicted of misdemeanors, it is necessary to know what is meant

by felony and misdemeanor.

Felonies and Misdemeanors

There is a fundamental distinction between the two words. Ourown courts for a long period of time have been confused as to theirmeaning. However, in order to really analyze the act, we mustdefine. The term felony when used in the Wisconsin Statutesmeans an offense for which the offender, on conviction, is liable bylaw to be punished by imprisonment in the state prison.' This isthe general statutory definition. In the English common law, felonysignified "an offense which occasioned a forfeiture of either land.or goods or both, and to which capital or other punishment couldbe added according to the degree of guilt."' In Wisconsin as else-where in the United States, we have abandoned the English con-cept of a felony. As with other types of definitions, however, whenwe apply specific cases to the general term, we encounter diffi-culties. For example, the crime 6f murder in all degrees is clearlya felony, for the reason that imprisonment in the state prison isthe only punishment provided. Where, however, a statute author-izes imprisonment in the state prison, or county jail, or a fine,leaving the punishment to the discretion of the judge, and the courtactually sentences the offender to the county jail, or gives him afine, do we get* a conviction for a felony or a misdemeanor? Thesignificance of the answer will be seen when we take apart theprobation act. The rule as stated in Corpus Juris removes some ofthe doubt:

"In most jurisdictions a crime is a felony under such a statute if itmay be punished by imprisonment in a penitentiary or state prison,although a court or jury may have the discretion to reduce punishmentto imprisonment in jail or to a fine and although punishment is in factimposed; but the rule is otherwise in a few states by statutes."'

This seems to be the general rule in the United States in thosestates which have a law similar to ours. In New York, where asimilar statute was construed, it was held that it is not the actualsentence but the possible one which determines the grade of theoffense.7 The New York rule seems to be the more logical one

4 Wisconsin Statutes of 1937, Section 353.31.54 Blackstone's Commentaries, 95.616 Corpus Juris, 57.7 People v. Hughes, 137 N. Y. 29, 32 N. E. 1105 (1893).

LAW OF PROBATION

and undoubtedly is the Wisconsin rule in view of the fact that somany of our statutes have been adopted by us in toto from theNew York code. Just recently the Supreme Court of Wisconsinfor the first time has had occasion to consider the problem in thecase of State v. Rogers.8 The defendant, an attorney-at-law, wasconvicted of violating the Blue Sky law involving the sale of se-curities. A violation was punishable by imprisonment in the stateprison, not exceeding five years or in a county jail not exceedingone year, or by a fine not exceeding five thousand dollars, or both.The defendant escaped imprisonment but paid a fine on each ofthree charges. The Wisconsin Supreme Court held that the de-fendant was convicted of a felony, although he had not been im-prisoned. Whether the crime was a felony or not was not actuallyinvolved, so that this case may not be taken as an absolute authorityon the proposition, but nevertheless the decision remains as anexpression of the New York rule.

In general, felonies are regarded as the more serious crimes.Misdemeanors, on the other hand, are crimes which are not con-sidered so serious. Misdemeanors are generally defined as anythingless than a felony.9 However, from this class of misdemeanors areexcluded all violations of city, county, village or municipal ordi-nances. . The latter are not crimes at all and, therefore, shall notbe considered."0

Juvenile and Adult Probation

The question as to the difference between adult and juvenileprobation still remains. Under the Wisconsin law a minor is aperson under the age of twenty-one years, and an adult is oneover that age." By statutory definition a "delinquent" child is anychild under the age of eighteen years who has violated any law ofthe state or any county, city, town or village ordinance, or who byreason of being wayward or habitually disobedient is uncontrolledby his parent, guardian or custodian; or who is habitually truantfrom school or home, or who habitually so deports himself as toinjure or endanger the morals or health of himself or others.12

This background has been so carefully elucidated for the simplereason that the Wisconsin system cannot be clearly understood

8 275 N. W. 910 (Wis. 1937).9 Stimson, F. J., A Concise Law Dictionary, Boston, 1911, p. 249.10 City of Oshkosh v. Schwartz, 55 Wis. 483, 13 N. W. 552 (1882).11 Wisconsin Statutes of 1937, Section 319.01.12 Wisconsin Statutes of 1937, Section 48.01 (c).

452 EDWIN C. CONRAD

without an attempt to define the various elements in our law. There

are 48 states in the Union. Each state has developed along its ownlines. In view of this fact, it is not easy to generalize our concepts.

Having disposed of these preliminaries, we may proceed to anexamination of the Wisconsin Probation Act.

THE STATUTORY LAW OF WISCONSIN

Adult Probation-Convictions for Felonies

Under Section 57.01 of the Wisconsin Statutes, whenever any

adult is convicted of a felony, and the court is satisfied that theconvicted person's character and the circumstances of the caseindicate that he will not commit crime again, and that the public

good does not require that he shall suffer the penalty of imprison-ment demanded by law, the trial court may suspend the judgmentor stay the execution thereof and place the defendant on probation.

When granting probation the judge shall state the reasons for hisorder. As a condition of granting probation, the court may orderthat restitution be made, or that the costs of the action be paid by

the probationer, or both. Within the period of probation, the adultmay be returned to such court at any time for sentence on theoriginal charge, and upon the expiration of the period of probationhe may be sentenced, discharged, or continued under probation foran additional period to be then fixed by the court, subject to likereturn, discharge, sentence or further probation.

Although Section 57.01 of the Statutes is very broad and com-

prehensive in its terms, it contains important exceptions. No pro-bation may be granted by the court in any event under Section

57.01 when the defendant has been convicted of any of the followingoffenses:

(1) Murder in the first degree.13

(2) Murder in the second degree. 4

(3) Duelling resulting in death. 15

(4) Acting as a second in a duel resulting in death.16(5) Causing death by injury to a railroad.17

(6) Setting fire to a building in the nighttime and causing death.'6(7) Murder in the third degree. 19

13 Wisconsin Statutes of 1937, Section 340.02.14 Wisconsin Statutes of 1937, Section 340.03.15 Wisconsin Statutes of 1937, Section 340.04.I Wisconsin Statutes of 1937, Section 340.05.17 Wisconsin Statutes of 1937, Section 340.06.is Wisconsin Statutes of 1937, Section 340.07.19 Wisconsin Statutes of 1937, Section 340.09.

LAW OF PROBATION 453

(8) Assault with intent to rob or murder with robbery.20

(9) Assault with intent to murder or rob.2 '(10) Kidnapping.2

2

(11) Breaking house in the nighttime while armed.2 3

(12) Burglary with explosives. 24(13) Entering bank or trust company.2--(14) Pandering.2(15) Abandonment of wife or child.2 7

It, of course, is obvious that the majority of the exceptions are inthe classification of offenses against the person, with offenses againstproperty next in line.

After a person convicted of a felony has been placed on pro-bation, the work of supervision and control does not remain withthe court as would be expected. Under Section 57.02 of the Stat-utes, every defendant placed on probation pursuant to Section57.01 shall be subject to the control and management of the Boardof Control of the State of Wisconsin under the regulations applyingto persons paroled from state institutions. There is one exceptionto this rule. In counties having a population of 250,000 or over,the Municipal court of that county, instead of the Board of Con-trol, shall have exclusive charge "of all persons placed on probationin that county pursuarlt to Section 57.01 of the Statutes. In Wis-consin, only Milwaukee County falls within the last mentionedclassification, and for this reason it may be stated that in the caseof felon probationers, the Board of Control is the supervising agencyin Wisconsin, except in Milwaukee County, where the Municipalcourt takes over these functions.

Section 57.03 of the Statutes is perhaps one of the features ofthe Act which makes the Wisconsin law unique in comparison withother plans. According to the terms of that provision, whenever itappears to the Board of Control that any probationer under itssupervision under Section 57.01 has violated the regulations orconditions of his probation, the Board may upon full investigationand personal hearing order him to be brought before the court forsentence upon his former conviction, or if already sentenced to apenal institution, may order him to be imprisoned in said institution,

20 Wisconsin Statutes of 1937, Section 340.39.21 Wisconsin Statutes of 1937, Section 340.40.22 Wisconsin Statutes of 1937, Section 340.5623 Wisconsin Statutes of 1937, Section 343.092-4 Wisconsin Statutes of 1937, Section 343.121.25 Wisconsin Statutes of 1937, Section 343.12226 Wisconsin Statutes of 1937, Section 351.16.27 Wisconsin Statutes of 1937, Section 351.30.

454 EDWIN C. CONRAD

and the term of said sentence shall be deemed to have begun atthe date of his first detention at such institution. Furthermore,

whenever in the judgment of the Board the probationer has satis-

factorily met the conditions of his probation, he shall be dischargedfrom further supervision, and the Board shall issue to him a cer-tificate of final discharge.

In no event shall the period of probation under 57.01 of theStatutes be less than the minimum nor more than the maximumterm for which the probationer might have been imprisoned.

Obviously, the State Board of Control when revoking a con-vict's probation, is acting as a quasi-judicial body. Therefore, whena convict has been sentenced, all further control over his conductis vested in the Board with the exception heretofore noted. If theprobationer who has violated the terms of his probation has notbeen sentenced, he must be brought before the trial court for sen-tence. Since in Milwaukee County the Municipal court itself isthe supervising agency over felon probationers, it needs no expressstatutory authority for revoking probation, and does so pursuant toits broad general powers.- For this reason no procedure is set upin the Act itself for the revocation of probation in MilwaukeeCounty.

Convictions for Misdemeanors

The procedure for placing a person on probation where hehas committed a misdemeanor or abandoned his wife or child isoutlined in Section 57.04 of the Statutes. It is somewhat differentfrom the procedure for felons outlined above. Under 57.04, when-ever any adult is convicted in any court of record of a misdemeanoror of the crime of abandonment of child or wife, the court in itsdiscretion may suspend the judgment or stay the execution thereofand place the defendant on probation for such period of time notexceeding the maximum penalty prescribed, and upon such termsand conditions, including the payment of any fine imposed, as itshall determine, so that the defendant may be given the opportunityto pay the fine if one is imposed, within a reasonable time. Uponthe payment of the fine, the judgment shall be satisfied and pro-bation cease.

In the case of a person convicted of a misdemeanor or abandon-

ment and placed on probation, the court shall place the probationerin charge of the State Board of Control or designate some suitableperson to act as probation officer. If the court has reason to believe

LAW OF PROBATION 455

from the report of the probation officer or otherwise, that the pro-bationer has violated or is violating the conditions of his probationor is engaging in criminal practices, or has formed improper asso-ciates, or is leading a vicious life, it may revoke such probationand pronounce sentence on the former conviction, or if sentencehas been pronounced, issue a commitment on the sentence or judg-ment, without deducting the period of probation. The court mayat any time after such revocation or probation again stay furtherexecution on any terms and conditions which it could have im-posed originally and may, whenever the ends of justice shall be§erved thereby and the good conduct and reform of the probationershall warrant it, terminate the period of probation and dischargehim from custody; but in all cases, if the court has not revokedthe probation or discharged him from custody, he shall at the endof the term of probation be discharged from custody and the sen-tence or judgment shall be deemed fully satisfied.

Although under Section 57.04, the court may designate theState Board of Control or some suitable person to act as the super-vising agency, there is one exception to this rule. In countieshaving a population of 250,000 or over, the District court of thatcounty shall have charge of all probationers who have been con-victed of a misdemeanor or abandonment. Milwaukee County isthe only one falling within this classification, and, therefore, inthat county the supervising agency is the District court exclusively.In the rest of the State, the supervising agency continues to bethe State Board of Control or some suitable person appointed bythe court. In explanation it should be stated that the DistrictCourt of Milwaukee County is a criminal court having trial juris-diction in cases of minor crimes, and the Municipal court is also acriminal court having trial jurisdiction in cases involving the moreserous crimes.

Juvenile Probation-For Minors Other Than Delinquents

The controlling section is Section 57.05. This section providesthat if any minor other than a delinquent child as heretofore de-fined, shall be found guilty of any misdemeanor or be convicted ofany felony, the court in its discretion may suspend sentence andplace such minor under the supervision of the State Board ofControl, as in the case of adults, or some other suitable personwho consents to become responsible. The period of probation shall

456 EDWIN C. CONRAD

not exceed the maximum penalty prescribed as the court may fix.The court may require as a condition of the making or continuingin effect of the order, the payment of costs and restitution, or both.

Such minor may be returned to such court on the original chargefor sentence, at any time within the period of probation, and uponthe expiration of such period, he may be sentenced, discharged or

continued under probation for an additional period to be fixed by

the court, subject to like return, discharge, sentence, or furtherprobation. Minors convicted of murder in the first degree, second

degree, third degree, or assault with intent to rob (with or withoutthe completed act of robbing), kidnapping, entering bank or trust

company, or pandering, are not eligible for probation under this

section.

In counties having a population of 250,000 or over, all minorsplaced on probation pursuant to Section 57.05 shall be under the

charge of the District court of that county. Milwaukee County,being the only one falling within this classification, the exception

applies only to one out of seventy-one counties in the State.

For Minors Defined as Delinquent Children

An attempt has already been made to explain the nature of

the delinquent child according to our Wisconsin law. Chapter 48,

also known as the Children's Code, and its predecessors, wereenacted for the express benefit of the children of Wisconsin andwere outgrowths of the times. Any child who is suspected of beingdelinquent, dependent or neglected is brought before the Juvenilecourt of the county. The Juvenile court in counties having a popu-

lation of 250,000 is required by statute to appoint a probation officer

and his assistants. Again this mandate applies only to MilwaukeeCounty. In all other counties in the State, the county boards mayin their discretion appoint probation officers to take charge of

delinquent, dependent and neglected children. It perhaps has al-ready been noticed that a delinquent child is not necessarily one

who commits a crime. He may be a habitually unruly fellow, or onewho is habitually truant from school. This idea must be kept in

mind.

Under Section 48.07, if the court finds that a child is delinquentwithin the meaning of the law, it may place him on probationunder the supervision of a probation officer or of some other fit

and suitable person, either in the child's home or elsewhere. The

LAW OF PROBATION 457

Children's Code specifically provides that a judgment by the courtfinding the child delinquent is not an adjudication that the childhas committed a crime. The child is not deemed to be a criminal.

However, although a delinquent child is defined to be oneunder the age of eighteen years, provided he satisfies all the otherparts of the definition, yet notwithstanding this fact, Section 48.11specifically provides that when any child under sixteen years ofage is arrested and charged with a violation of any state law,county, city, town or village ordinance, he shall be taken directlybefore the Juvenile court. Conversely, where a minor over theage of sixteen is convicted of violating a state law or any municipalordinance, he is not taken to the Juvenile court. He remains withinthe jurisdiction of the court which has issued the warrant, and ifany probation is accorded to such minor, it is under the provisionsof Section 57.05 of the Statutes and not under Chapter 48.

Difference Between Chapter 48 and Section 57.05.

What has just been stated might be somewhat perplexing. Forthis reason it is best to illustrate the point by concrete examples.Let us suppose that A is fifteen years of age. A petition ified withthe Juvenile court alleges that A is habitually truant from school.A is taken directly before the Juvenile court of the county andadjudged to be a delinquent child under the provisions of Chapter48 of the Statutes. The rendition of the judgment does not brandhim as a criminal. The Juvenile court may place A on probationunder Chapter 48 of the Statutes, under the supervision of theprobation officer, if the court has one, or else under a suitableperson appointed by the court. At all events, A is under the ex-clusive jurisdiction of the Juvenile court.

Supposing another case, let us assume that B, a minor, isfifteen years of age and has committed the crime of burglary. Letus suppose that the warrant was issued by a Justice of the Peacein Green County, Wisconsin. In the case of adults the normalprocedure is to bring the offender before the Justice of the Peace,who holds a preliminary examination when burglary is concerned,and if he finds that there is probable cause to believe that the crimeof burglary has been committed, the Justice will bind the defendantto the Circuit Court of Green County for trial. However, underChapter 48 it is the duty of the officer making the arrest to take Bbefore the Juvenile court of the county, which in the supposed

458 EDWIN C. CONRAD

case would be the County Court of Green County. The Justicewho issued the warrant loses jurisdiction, and the Juvenile courtacquires it. The Juvenile court adjudges B to be a delinquentchild and may place him on probation pursuant to Chapter 48.

C, on the other hand, is a minor, seventeen years of age, whohas also committed the crime of burglary. A warrant for his arrestis issued by a Justice of the Peace of Green County, Wisconsin.By virtue of the warrant, he is taken before the Justice for apreliminary examination. If the Justice finds that there is probablecause that the crime is committed, C is bound over to Circuit.Court for trial. If he is found guilty in the Circuit Court, he maybe placed on probation pursuant to Section 57.05 of the Statutes.In C's case the Juvenile court would have no jurisdiction what-

soever.

If in the illustration above, A were seventeen years of age andnot guilty of committing any crime, the procedure would still beunder Chapter 48, the Juvenile court act.

The statutory law of Wisconsin regarding both juvenile andadult probation required over thirty years to reach its present state.

EVOLUTION OF OUR MODERN LAw OF PROBATION

The rational and irrational processes by which society reachesthe various cultural levels, is best exemplified by the history of itslegislation. At least this should be true as far as modern civilizationis concerned. Why a certain law gradually shapes itself in the

form it eventually takes is the everlasting question 'about whichwe are always inquiring. But legislation has its evolutionary cyclejust as do living things. The progress and development of a peopleis revealed to a great extent by the history of their legislation.Just as the psychologist attempts to fathom the thoughts of theindividual, so does the legal scholar study the present law by goingback into the past to ascertain the thinking processes by whichsuccessive legislatures have molded present statutes. Perhaps thisexplanation of purpose will justify the following detailed historyof the Wisconsin probation law.

Adult Probation-The Original Act

It has already been pointed out that the adult probation law inWisconsin had its inception in the year 1909, although an'assertion

LAW OF PROBATION 459

has been made that the year 1901 is the correct starting point.2 ,

What Hiller had in mind when he made 1901 the origin was theJuvenile Probation Law, for in the year 1901 Wisconsin for the firsttime enacted a Juvenile Probation Law.2 9 A careful analysis ofthis legislative act of 1901 reveals that it provided for no adultprobation. A diligent search of our session laws does not revealany enactment concerning adult probation until the year 1909.Although certain officials have boasted to the effect that our adultprobation law was one of the earliest in the country, it was enactedpractically thirty years after the Massachusetts act.

On June 17, 1909, the governor of the State of Wisconsin ap-proved Chapter 541 of the Wisconsin Laws of 1909. This was thegenesis of our. adult probation system. The act added twelve newsections to the Statutes, namely Sections 4734 (a) to (1) inclusive,

Section 4734 (a) of the Statutes of 1898, therefore, providedthat the court could place-a defendant on probation if the courthad power to sentence such defendant to the Wisconsin State Prison,the reformatory, any workhouse, house of correction or other cor-rectional institution in cases where the minimum penalty was im-prisonment for one year or more. Any one who hitherto had everbeen convicted of a felony. or a misdemeanor in this state or else-where was ineligible. Under Section 4734 (b) no person convictedof a crime the maximum penalty for which was more than tenyears imprisonment could have the benefit of the act. Under Sec-tion 4734 (c) all persons convicted and placed on probation wereput under the supervision of the State Board of Control. Section4734 (g) is substantially like Section 57.04 of the Wisconsin Stat-utes of 1937..

Thus Sections 4734 (a) (1) inclusive were the forerunners ofSections 57.01 to 57.04 inclusive of the present statutes. Theseoriginal sections attempted to take care of the same classification ofcrimes as the present act defines as felonies without actually dis-tinguishing between felonies and misdemeanors. It will be seenthat the original act only applied to first offenders. In this respectit differs from our present act which is not restricted to firstoffenders. The original act -was very limited in the sense that aperson was considered a first offender despite the fact that he hadonly committed a petty misdemeanor. Section 4734 (a) also placedall supervisory power all over the state in the hands of the State

28 Hiller, op. cit., p. 37.29 Wisconsin Laws of 1901, Chapter 90.

EDWIN C. CONRAD

Board of Control. It is also clear that if a person could be sen-tenced by the court for a maximum term exceeding ten years, hewas not eligible to probation.

Section 4734 (j) of the Statutes of 1898 as created by Chapter541 of the Laws of 1909, applied to that class of crimes defined asmisdemeanors at the present time and now within the provisions ofSection 57.04 of the Wisconsin Statutes of 1937. By virtue of theoriginal section, in all cases arising either under the statutes orany municipal ordinance where the penalty provided for the offensewas imprisonment in a jail or workhouse for a period less than oneyear or that the defendant be fined and in default of payment offine that he be imprisoned for a term less than one year, the de-fendant could be placed on probation. The supervising agencywas a suitable person appointed by the court. The maximum periodof probation could not exceed the maximum penalty provided bythe law for that particular crime. Under Section 4734 (a) theperiod of probation could not be less than the minimum nor morethan the maximum term for which he might have been imprisoned.

The original act relating to misdemeanors differed in two re-spects from the present Section 57.04: in the first place, personscould be placed on probation if they had violated a city ordinance;this is not the law at tlie present time; in the second place, theState Board of Control was not named as an alternative supervisingagency as does the present act.

Subsequent Developments

Chapter 269 of the Laws of 1911 segregated Milwaukee Countyfrom the rest of the state in the administration of the Probationlaw. By that act all probationers in Milwaukee County wereplaced under the charge of the Municipal court of that county.Milwaukee County was not named specifically in the act, but sincethe law as enacted only applied to counties of 250,000 or over inpopulation, Milwaukee County was the only one affected.

Chapter 136, Laws of 1913, introduced the present divisionbetween misdemeanors and felonies in the Wisconsin ProbationLaw. Section 4734 (a) was amended so as to read that wheneverthere is any conviction in any court of this state of a felony punish-able by imprisonment for a term not exceeding ten years, thecourt may place the defendant on probation. Section 4734 (j) wasamended to apply only to misdemeanors or abandonment, and thus

LAW OF PROBATION 461

were eliminated from this section all violations of municipalordinances.

Thereafter nothing of a very substantial nature was done inthe way of amending the adult probation law until 1919. In thatyear the law was revised and redrafted. This was effected throughthe passage of Chapter 30, Laws of 1919, and Chapter 615, Laws of1919. The old chapter dealing with probation was Chapter 199 ofthe Revised Statutes of 1898 as amended. With the revision of1919, the probation law became Chapter 57 of the Statutes. Atthe same time the decimal system of numbering the statutes wasapplied to the probation law. Therefore, Section 4734 (a) becameSection 57.01 of the Statutes of 1919, Section 4734 (d), (e) and(m) were consolidated and took the form of Section 57.02 of the

Statutes of 1919. Section 4734 (g) and (h) were consolidated andbecame Section 57.03 of the Statutes of 1919. Sections 4734 (j)and (k) became the present Section 57.04 pertaining to misde-meanors.

These two enactments effected several important changes.Prior to this time, the wording of both the felony and misdemeanorsection was substantially to the effect that probation could begranted in cases for conviction of a felony or a misdemeanor. Therewas no attempt to specify that Section 4734 (a) and Section 4734(j) applied only to adults. There was quite some confusion as aresult. The 1919 revision henceforth made Sections 57.01 and 57.04apply only to adults. The 1919 law for the first time provided thatthe court could order costs to be paid and restitution made as acondition for granting probation. In addition thereto, in the caseof misdemeanants, the court could now designate some suitableperson to act as probation officer, or in the alternative name theState Board of Control. As revised, Section 57.01 continued toapply only to persons convicted of offenses punishable by imprison-ment for a period not exceeding ten years, provided that personhad never before been convicted of a felony elsewhere.

Two more significant changes appeared before the adult pro-bation act was finally molded into its present form, that is, Chapter57 of the Statutes. The limitation in the adult probation law thatno probation could be granted in a situation where a person wasconvicted of a felony the punishment for whicl could exceed tenyears imprisonment was stricken by Chapter 150, Laws of 1931.This law also struck out the provision that a prior conviction fora felony would bar a person from having the privilege of probation.

462 EDWIN C. CONRAD

From 1931 on, Section 57.01 extended to all convictions for felonieswith the present exceptions in the statutes noted above. Thenet result of this change was to broaden and expand the adult pro-bation law to include all crimes with a few heinous ones excepted.

Chapter 357, Laws of 1931, further provided that in Milwaukee

County the supervision of persons convicted of misdemeanors and

placed on probation was placed in the District court of that county.

Juvenile Probation

An attempt was made by Chapter 90, Laws of 1901, to create asystem of juvenile probation in counties having a population of150,000 or more. Again this particular act applied to Milwaukeecounty alone. It parallels the enactment of the original Massa-chusetts act applying to the City of Boston and perhaps was pat-terned after that act. The law provided that the court was toappoint probation officers to serve without compensation. A dL-linquent child was defined to be one under sixteen years of age

who had violated any law of this state, the maximum for whichwas not imprisonment in the State prison. The court could grantthe custody of the child- to the probation officer under the court'ssupervision. Chapter 97, Laws of 1903, enlarged .this act somewhatby providing that when the child was found to be delinquent, thecourt could continue the hearing until the child was sixteen yearsof age and could, among other things, commit the child to the cus-tody of the probation officer.

1907 marked another milestone in the development. Chapter426, Laws of 1907, was passed in that year. It provided that ifany minor of the age of sixteen years or over be found guilty ofany misdemeanor, or be convicted of a felony for the first time, forwhich offense the maximum penalty could not exceed seven yearsimprisonment, the court could place the offender on probation fora period not exceeding six months. This became Section 4725 (a)of the Revised Statutes of 1898. Section 4725 (a) was amended byChapter 131, Laws of 1911, to apply to all cases of minors, regardlessof age. But in 1915 Section 4725 (a) was enlarged by Chapter 13,Laws of 1915, to apply to convictions for which the maximumpunishment could not-exceed ten years imprisonment. By Chapter30, Laws of 1919, Section 4725 (a) was renumbered to read Section4734 (b). By the same act the probation agency was to be eithersome suitable adult person or the State Board of Control as inour present system.

LAW OF PROBATION 463

The next significant change was Chapter 194, Laws of 1921.Section 4734 (b) now became Section 57.05. At this point childrenwho were defined as delinquents were brought and treated underthe provisions of the Juvenile Court Act, Chapter 48, and notunder Section 57.05. The latter section from then on only appliedto minors who were not classified as delinquents under the JuvenileCourt At. Furthermore, Section 57.05 as amended in 1921 fixedthe period of probation not exceeding the maximum penalty pre-scribed for the offense. In 1929 under Chapter 439, Laws of 1929,the court could require costs to be paid and restitution made.Chapter 214, Laws of 1931, changed Section 57.05 so that it tookits present form.

If the past is any indication, our present probation law, bothjuvenile and adult, certainly has not reached any state of stability.

The picture just given is biased, in that it gives only thelegislative development. What has been the attitude of our Su-preme Court in relation to the probation act, should be the nextlbgical phase to pursue.

JUDICIAL INTERPRETATION

The Supreme Court

Our Supreme Court has had three occasions to consider ourprobation law. In 1923 it decided the famous case of State ex tel.Zabel v. Municipal Court of Milwaukee County.30 In that case oneM. had been convicted of manslaughter in the first degree, whichconstitutes a felony under our statutory definition. The court sen-tenced him to the reformatory at Green Bay for a period of fiveyears. M. appealed to the Supreme Court. Presumably, whiledefendant's appeal was being considered in the Supreme Court, theMunicipal court executed an order placing the defendant on pro-bation. The District Attorney of Milwaukee County issued a writto have the probation order reviewed by the Supreme Court. Inits original opinion the court laid down three fundamental prin-ciples which should aid materially in the construction of the act.

(1) The court held that the district attorney of the countywhere the conviction was obtained could by means of a writ ofcertiorari have the probation order of the trial court reviewed tosee whether the court could have the power to make such an order.From the standpoint of administration of the law this is important

3o 179 Wis. 195, 190 N. W. 121 (1923).

464 EDWIN C. CONRAD

because it gives the state, through its proper officers, a chance toreview a void probation order of the trial court.

(2) The court also held that where a defendant is sentencedand not put on probation at the time of the sentence, and he appealsfrom the judgment of conviction, the lower court has no powerto grant probation to the offender while the case is pending in the

Supreme Court.

(3) As a third principle, the court enunciated the doctrinethat if a defendant is sentenced and at such time he is not placedon probation, the court may at any time during the current termof court revise its sentence and place the person on probation. Butif a person was sentenced with no probation, the court could notrevise the sentence and grant probation after the expiration of theterm of court during which the defendant was sentenced.

The first two principles advanced in this case are based onsound logical reasoning. The state is vitally interested in howand why the court grants probation to offenders. If the probationorder is void, the state should have a right to have that orderreviewed. However, the third principle established by the courtsmacks too much of the common law, without any attempt to recon-cile the common law system with modern conditions. In reachingthe decision the court was of the opinion that the common law rulethat a sentence could not be revised after the term had expired pre-vailed and that Section 57.01 of the statutes could not be construedto the effect that such common law rule was abrogated. A perusalof Section 57.01 indicates that it is much broader than the courtsuspects it to be. The result reached by the court is too artificialand based too much on the archaic. The court was consideringthe Probation Act enacted in this state in 1909. Why the courtwent back to the common law in construing a modern statute ishard to determine. The law was intended to give the trial judgepower to place a defendant on probation at any time if it saw fit todo so. The discretion was placed in the hands of the judge. Thelaw says nothing about the time when such discretion shall beexercised.

Because of a mistaken procedure the court was not called uponto answer an interesting question in the case of Application ofKnox.31 On August 16, 1920, one Knox, an infant nineteen yearsof age, was convicted of driving an automobile without the consent

31180 Wis. 622, 192 N. W. 395 (1923).

LAW OF PROBATION 465

of the owner, which act constituted a felony. Knox was placed onprobation for a term of one year. Within the year the petitionerwas brought before the court on the charge of having violated hisprobation, and was thereupon sentenced to Waupun for a term ofthree years. The petitioner contended that probation for one yearwas sentence and punishment and, therefore, the court did not havea right to pass another sentence on him for the same offense.However, since the defendant proceeded by way of a writ of habeascorpus instead of a writ of error, the court would not pass uponthis question.

That the courts have very broad powers under the probationlaw was clearly established in Brozosky v. State.32 The trial courthad found the defendant guilty of a second offense under the liquorlaws. A violation of such law was a misdemeanor. The trial courtwithheld sentence on defendant's plea of nolo contendere and placedhim on probation for the term of one year. The defendant wasplaced under the charge of the trial court itself. Some monthsafter the judgment was entered, the defendant was brought beforethe trial court and given a term in the house of correction. Thetrial court found that the defendant had violated the terms of hisprobation.

The decision formulates two new and distinct principles in thisrealm of jurisprudence. -

(1) The defendant contended that the term in which the ori-ginal judgment had been imposed had expired, and according tothe rule of State ex rel. Zabel v. Municipal Court,33 the judgmentcould not be revised after the term had expired. The court dis-missed this argument. It conceded that after the term had ex-pired the court did not have the power to revise its sentence andjudgment. "But the judgment here in question did provide forprobation and for the subsequent sentence of the defendant if heviolated the terms of his probation. So that the sentence here inquestion was imposed in strict accord with the express terms ofthat judgment and pursuant to power expressly conferred by stat-ute. The sentence imposed did not change or modify the judgmentof the court as it did . . . in State ex rel. Zabel v. MunicipalCourt, supra." This result was the only conclusion which the courtcould reach. The defendant was relying on a pure technicality.

32197 Wis. 446, 222 N. W. 311 (1928).q'3 179 Wis. 195, 190 N. W. 121 (1923).

EDWIN C. CONRAD

(2) The following language taken from the decision sustainswhat has always been considered the basis for disposition of pro-bation cases by summary procedure:

"The court had the power to inquire into the conduct of the de-fendant in a summary way and to impose sentence without a formaltrial of the issue whether the defendant had violated the conditions ofhis probation. The defendant has no right to demand he be placed uponprobation. The statute above quoted gives the court the discretion todetermine whether the good of society and the defendant will be pro-moted by placing the defendant on probation and also the power todetermine when that probation should be terminated. Beneficent re-sults could not be secured under the probation law if every probationerwas entitled to a trial-perhaps a jury trial-to determine whether hisprobation should be terminated. The vesting of such power in the courtdoes not deprive the defendant of any of his constitutional rights. Whenone has been found guilty of an offense against society, no constitutionalprovision guarantees him the right to produce proof or to try out theissue of what his punishment should be. That is a question that mustbe determined by society, which has vested the power in the courts."

It will be noticed that the above case involved a misdemeanor. Thesame ruling should apply to felony convictions. In the event of afelony conviction the State Board of Control acts as a quasi-judicialbody and will be subject to the same ruling. However, by virtueof Section 57.04 the board shall give a full and personal hearingbefore it revokes a term of probation.

(3) The defendant also urged that the court had no power toplace him on probation subject to the direct control of the trialjudge. Assuming that the defendant was right in his contention, itwas decided nevertheless that the defendant was not prejudiced bysuch action because he still enjoyed his freedom and could haveescaped punishment had he obeyed the rules of the game. There-fore, if the decision is to be followed even where the State throughits officers makes complaint, it enlarges the probation act to includesupervision by the court. This would not then be probation; itwould be a suspension of sentence, and from a sociological stand-point cannot be tolerated. However, it seems highly possible thatif the rights of the State were brought into question, the courtmight hold that a trial judge could not make himself the probationofficer in view of the Supreme Court's statement in the principalcase that the trial court should appoint someone else to act as pro-bation officer.

LAW OF PROBATION 467

USE OF THE PROBATION PROCEDURE

Although our probation law is over thirty years of age, it was

not used very extensively in the early period of its existence. It israther difficult to give a perfect picture pertaining to the use ofprobation in Wisconsin. Table 114 attempts to give an approximate

idea. However, in all fairness, it must be pointed out that Table Iis perhaps based on statistics which are inadequate. The Board ofControl did not begin to compile criminal statistics until the year1922. Consequently, we have no earlier data as to the use ofprobation in this state. Despite the fact that the data on whichTable I is based are not as complete as they should be, the facts

therein set forth present substantially a universe of facts and willgive us a pretty good idea of the use made of the probation lawby our courts. If we take the mean average for the years 1922 to1936, inclusive, we discover that approximately 19.4% of all personsconvicted in our courts of record of general jurisdiction were placedon probation during this period. Furthermore, Table I reveals thatfor the years 1931 to 1936 inclusive the percentage of those placedon probation in Wisconsin as compared with the total number ofconvictions doubled. Taking the mean for the years 1931 to 1936inclusive as a fairer representation of the present day picture, we

find that during these years approximately 33.1% of all such personsconvicted were placed on probation. Table I will also show that theyear 1933 saw a more prevalent use of the probation procedure than

at any other time in the history of the act. Figures for 1937 arenot available.

In the year 1936, courts of general criminal jurisdiction of 69out of a total of 71 counties in the state reported. During the year1936, these courts reported a total of 12,835 persons who werefound guilty and convicted by the courts, 2,330 cases being for

felonies and the balance for misdemeanors, generally speaking. Outof the total of 12,835 convictions, both for disdemeanors and felonies,a total of 3,658 persons were placed on probation, or 28.5 per cent.

A total of 856 or 6.6% were sent to the Wisconsin State Prison orReformatory; 1770 or 13.7% were sentenced to local jails. A total

of 6430 or 50% of all those convicted paid fines and costs, or costsalone; and 121 or about 1 were sent to juvenile institutions or weredisposed of in other ways.3

34 See next page.33 Statistics of Courts of General Criminal Jurisdiction; 1936: Wisconsin, De-

partment of Commerce, Bureau of Census, Washington, D. C., Dec., 1937, p. 2.

468 EDWIN C. CONRAD

TABLE I

DEFENDANTS IN CRIMINAL CASES FOUND GUILTY BY TRIAL COURTS OF GEN-ERAL CRIMINAL JURISDICTION IN WISCONSIN, SHOWING THE TOTAL

NUMBER OF CONVICTIONS, THE TOTAL NUMBER PLACED ON PROBA-

TION, OTHER DISPOSITIONS, AND THE PERCENTAGE OF THE TOTAL

NUMBER OF THOSE CONVICTED PLACED ON PROBATION*

Percentageof Convicted

Total Placed on Other Placed onYear Convictions Probation Disposition Probation

1922 9626 1151 8475 11.91923 10993 905 10088 8.21924 9404 1293 8111 13.71925 12288 898 11390 7.31926 11857 1104 10753 9.31927 13332 1275 12057 9.51928 11593 1257 10336 10.81929 12995 1528 11487 11.71930 15113 1559 13554 10.31931 15754 5542 10212 35.11932 15108 5732 9376 37.91933 16969 7371 9598 43.41934 17117 4325 12792 25.2.1935 14634 4199 10435 28.61936 12855 3658 9177 28.5

* Table compiled from the following sources: Seventeenth Bienniol Report ofthe State Board of Control of Wisconsin, Madison, Wis., 1924, pp. 50-53; EighteenthBiennial Report of the State Board of Control of Wisconsin, Madison, Wis., 1926,pp. 91-96; Nineteenth Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1928, pp. 52, 55; Twentieth Biennial Report of the State Board ofControl of Wisconsin, Madison, Wis., 1930, p. 60; Twenty-first Biennial Report.ofthe Wisconsin State Board of Control, Madison, Wis., 1932; Twenty-second Bien-nial Report of the State Board of Control of Wisconsin, Madison, Wis., 1934, pp.14-15; Twenty-third Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1936, pp. 243, 246; Statistics of Courts of General Criminal Jurisdic-tion; 1936: Wisconsin, Department of Commerce, Bureau of Census, Washington,D. C., December, 1937, pp. 1, 2. Substantially all the courts of record in the Stateare included in this table. There are, however, certain omissions. For example,in 1932 only 105 out of 109 courts reported; in 1933, 107 out of 108 courts reported;in 1934, all but two courts reported; in 1935, four counties and one municipalcourt missing; in 1936, 69 out of the 71 counties reported.

Arranging the frequency of the different types of dispositions

of criminal cases of those actually convicted in* the year 1936 for

all crimes, both felonies and misdemeanors, we get the following

order:

LAW OF PROBATION 469

Per CentFines and costs ..................... 50 plusProbation .......................... 28.5 plusLocal jails ......................... 13.7 plusPrison, or Reformatory .............. 6.6 plusOther dispositions .................. 1. minus

Total .......................... 99.8 plus

Among our trial courts of general criminal jurisdiction, there-fore, probation ranks second in line as a method of dealing with theperson who has been convicted of a crime.

A comparison of the use which Wisconsin courts make of pro-bation with the use made by other courts reveals that the per-centages are somewhat the same. The United States Census Bureaufound that in 24 states reporting, 23.3% of all persons convicted incourts of general criminal jurisdiction in 1934 were placed on pro-bation. In Massachusetts this percentage was 23.4%. In NewYork the courts of record placed 22.7% of all persons convicted onprobation.30

ADMiNISTRATION OF THE PROBATION LAw

Historical Background

The law at the present time recognizes four administrativeagencies. In cases of convictions for felonies, the work of super-vision after judgment has been entered by the court is delegatedexclusively to the State Board of Control, excepting in the case ofMilwaukee County, where all felons placed on probation are super-vised by the Municipal court of that county. In the case of mis-demeanants, the supervising agency is either the State Board ofControl or some suitable person appointed by the court, except inMilwaukee County, where that function is in the hands of theDistrict court. We have already seen that our Supreme Court hasrecognized a fifth administrative agency, and that is the court itself.

The supervising agencies which are typical of Wisconsin at thepresent time are the State Board of Control in the state outside ofMilwaukee County, and the Municipal and District courts in Mil-waukee County.

A history of probation in Wisconsin reveals the fact that from1909, the year of the inception of our probation act, to 1924, the

3 Social Work Year Book, 1937, Russell Sage Foundation, N. Y., 1937, pp. 350,351.

470 EDWIN C. CONRAD

year of the reorganization of the State Board of Control, the boardwas inadequately financed and poorly staffed. As a result, judges

became dissatisfied with the law and the public was unconvinced ofits merits. For many years in the earlier period only one fieldofficer and one assistant supervised all of the probation cases in the

hands of the State Board of Control.3 - The period from 1909 to1924 in Wisconsin probation history may be characterized as one oftwo much economy, without any attempt to do any real case work.However, this policy was to change upon the appointment of Dr.

William F. Lorenz to the State Board of Control. His adventmarked a radical change in the policies pertaining to the admin-

istration of the probation law. The aim of the board became, intheir own words:

"In the administration of the probation laws and the laws relatingto children . . . the aim was to apply higher standards, make a morethorough study of each case, and through better supervision secure morethorough rehabilitation of first offenders." 38

With this ideal in mind, the Board in 1924 invited the NationalProbation Association to send its field director to Wisconsin to

study our system, and make his recommendations. 9 Pursuant to

this request, Francis Hiller, field secretary for the association anda member of the New York bar, undertook a field study in Wis-consin, being assisted in his work by the Department of Sociology

of the University of Wisconsin. Approximately four months werespent in this manner. As a result of this scrutiny, the associationmade the following findings:

"(1) There is a general acceptance in Wisconsin of the principle ofprobation for adults in proper cases.

(2) In most counties probation is being very little used and itspossibilities for usefulness are not being realized.

(3) Probation service by volunteers is the prevailing system out-side Milwaukee county, but is inadequate and inefficient.

(4) The state Probation Department is not meeting the need andprobably cannot be developed so to do.

(5) Local volunteer probation officers are being used to a muchgreater extent than the state Probation Department, eventhough often illegally so.

37 Twenty-second Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1934, p. 87.

38 Eighteenth Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1926, pp. 7, 8.

39 Ibid., p. 31.

LAW OF PROBATION 471

(6) There is a widespread dissatisfaction with the present proba-tion laws and their administration.

(7) There is a great need of information and aid to local com-munities and courts in the development of good probation work.

(8) In spite of defects in the law and weaknesses in its administra-tion, the probation work being done is of great value to thestate and the individuals concerned."40

With these recommendations and findings in mind, the boardundertook to effect a complete departmental reorganization in thedivision of probation. More workers were added to the staff, anda more sociological approach, such as the case work method, wasorganized. The board, however, rejected the recommendation ofthe National Probation Association based on this study that theplan of state administration be abandoned in favor of county pro-bation systems. The board in rejecting the change to a countysystem, believed that for Wisconsin the state system was best; thatthere were no inherent defects in our own system; that the reasonsfor the low state which the administration had fallen into were duelargely to lack of funds and appropriations and inadequate staffs.41

A study of Table I will show that following this reorganization therewas a more extended use of the provisions of our probation law,beginning with the year 1931, by which time the new departmentwas fully organized.

In 1932 Francis H. Hiller again visited Wisconsin and spent aweek here vbserving the organization and work of the state Pro-bation Department. At the conclusion of his visit, he wrote asfollows:

"The growth of the Wisconsin State Probation Department duringthe past seven years affords a notable demonstration of what energy andintelligence can do in replacing a worthless probation department in acomparatively brief time by an efficient organization with high standardsof work."" -

Having acquired an ever increasing staff, the probation divisioneffected another change in February, 1932. From that time on thedepartment took over the parole work at the various state penaland reformatory institutions. 3 Such a plan proved very successful

40 Hiller, op. cit., pp. 39, 40.41 Eighteenth Biennial Report of the State Board of Control of Wisconsin,

Madison, Wis., 1926, p. 31.42 Hiller, Francis H., The Wisconsin State Probation Department, Report of

Field Visit, March 28-April 2, 1932, New York, 1932, p. 15. '43 Probation and Parole in Wisconsin, Statistical Department, State Board of

Control, Madison, Wis., p. 14.

472 EDWIN C. CONRAD

for the reason that a great deal of needless duplication in similartypes of work was eliminated.

The department of the State Board of Control handling proba-tion and parole was finally designated the Division of Probationand Parole.

In the spring of 1936, the governor appointed a group of thirty-five citizens from all sections of the state and from all walks of lifeto make a study of all welfare work in the state of Wisconsin. Itwas known as the Citizens Committee on Public Welfare. After ayear's study, it reported the following recommendations, inter alia:(1) That a State Department of Corrections be created to handlecorrectional work and, among other things, to handle adult andminor probation work and parole work; (2) that a Division ofProbation and Parole be created within the Department of Correc-tions. The duties of this division would include those already car-ried on by the State Probation Department and the present advisorypardon board.

44

Administration by the State Board of Control

At the present time the Division of Probation and Parole ofthe State Board of Control handles the work of probation. OnJune 30, 1936, the staff of this division consisted of 34 members-asupervisor of probation and parole, three assistant supervisors, andtwenty-seven probation and parole officers. 45 The civil service lawrequires all persons who wish to become probation officers to passa special examination in their field. At the present time the Bureauof Personnel has classified probation officers into two groups: (1)Probation Officer. A prerequisite is graduation from a recognizedinstitution with major work in social science, or its equivalent. Inaddition to this, a candidate for this position must have served thestate at least two years as a junior probation officer, or five years'experience in supervised social and case work, or equivalent train-ing. (2) Junior Probation Officer. This position requires gradua-tion from a recognized institution, with major in the social sciences,or its equivalent; also knowledge of court procedure, principles of

44 Public Welfare in Wisconsin, Report of the Citizens Committee on PublicWelfare, Madison, Wis., February, 1937, pp. 38-46.

43 TwentV-third Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1937, p. 54.

LAW OF PROBATION 473

criminology and accepted case work methods and practices. Theposition of Junior Probation Officer was but recently created.4

Upon conviction the trial court may enter an order suspendingsentence and placing the defendant on probation either without orwith pre-sentence investigation. A notice stating all the proceedingsin the case and the facts is forwarded to the central office in Madi-son. Thereupon, the field probation officer is notified and investi-gates the case, if he has not done so already, arranges for employ-ment, develops a plan to meet the requirements of the probationer,and then proceeds with his work or supervision just as any other

social case worker.47

The probationer enters into the following agreement with theState Board of Control:48

(1) I shall proceed at once to the place of employment provided forme and there remain until I receive notice of my final dis-charge, or through my supervising officer obtain the consentof the State Board of Control to change my place of employ-ment.

(2) I shall at all times keep my supervising officer informed of mywhereabouts and activities and shall on the first day of eachmonth until my release report to him or her . . .

(3) I shall in all respects conduct myself honestly, avoid evil com-panions, obey the laws and abstain from the use of intoxicatingliquors.

(4) With my report each month I shall enclose all money paid tome and not used in the necessari maintenance of myself orthose dependent on me.

(5) I shall remain while on probation under the legal custody ofthe State Board of Control.

(6) I shall hold myself ready to be returned to the court in whichI was convicted or to the institution to which I was sentencedfor any reason that shall be satisfactory to the State Board . . .

(7) I shall not contract marriage while on probation without ob-taining the consent of the Board.

(8) I shall not leave the state of Wisconsin during my probationperiod without the consent of the State Board of Control.

(9) In all matters not covered by the foregoing I shall be gov-erned by the instructions of my supervising officer.

It is evident that most of those placed on probation to theState Board of Control are persons convicted of felonies. The

40 Probation and Parole in Wisconsin, The Statistical Department of the StateBoard of Control, Madison, Wis., 1937, pp. 22-24.

47 Ibid., p. 14.48 Taken from the office records and forms of the State Board of Control of

Wisconsin.

474 EDWIN C. CONRAD

board does not have any great number of misdemeanants under itssupervision for the reason that the probation period for this typeof crime cannot exceed the maximum term, which in most cases issix months. Up to June 30, 1936, the State Board of Control hadhandled 9780 cases of probationers from the date of the enactmentof the adult probation law in 1909. In the official reports no figuresare available as to the number of those who were convicted offelonies and as to the number handled by the board in comparisonwith the other supervising agencies of the state. Table II revealsthe number of probationers placed with the board by biennialperiods. We can work out the approximate percentage of all casesof probation in the state handled by the board by using data con-tained in Tables I and II. One assumption must be made before wecan do this. Criminal statistics in Wisconsin are gathered and re-ported on the basis of the calendar year, whereas Table II is basedupon the fiscal year, that is from June 30 to June 30. I shall, there-fore, take the liberty to compare a fiscal biennial period with acalendar biennial period in determining from Tables I and II whatpercentage of all persons placed on probation by courts of generalcriminal jurisdiction in Wisconsin, including both felons and mis-demeanants, were placed with the State Board of Control. If wetake from such Tables I and II the calendar years 1922 and 1923and compare them with the fiscal years June 30, 1922, to June 30,1924, we find that during these years 11.4% of all felons and mis-demeanants placed on probation by the courts in the State ofWisconsin were placed under the charge of the board.

If we compare the calendar years 1924 and 1925 and the fiscalyears June 30, 1924, to June 30, 1926, the percentage is 19.7%;for the calendar years 1926 and 1927 and the fiscal years June 30,1926, to June 30, 1928, 35%; for the calendar years 1928 and 1929and the fiscal years June 30, 1928, to June 30, 1930, 39%; for thecalendar years 1930 and 1931 and the fiscal years June 30, 1930, toJune 30, 1932, 27%; for the calendar years 1932 and 1933 and thefiscal years June 30, 1932, to June 30, 1934, 15% for the calendaryears 1934 and 1935 and the fiscal years June 30, 1934, to June 30,1936, 21%. It follows that only a small number of all persons

placed on probation in this state are placed in charge of the StateBoard of Control.

LAW OF PROBATION

TABLE II

NUMBER OF PERSONS PLACED ON PROBATION TO THE STATE BOARD OFCONTROL OF WISCONSIN FROM THE ENACTiMENT OF THE PRO-

BATION LAW IN 1909 TO JuNE 30, 1936*

Number PlacedYears Under Board

1909-1910 .......................... 121910-1912 .......................... 721912-1914 .......................... 1561914-1916 .......................... 2901916-1918 .......................... 2191918-1920 .......................... 2751920-1922 .......................... 3831922-1924 .......................... .2361924-1926 ......................... 4341926-1928 .......................... 8371928-1930 .......................... 10901930-1932 .......................... 19631932-1934 .......................... 19771934-1936 .......................... 1836

Total ........................... 9780

* Compiled from the data contained in the 11th to the 23rd Biennial Reports ofthe State Board of Control of Wisconsin. The years above represent fiscal yearsfrom June 30 to June 30.

Administration in Milwaukee County

As indicated heretofore felon probationers in MilwaukeeCounty are under the control of the Municipal court; misdemean-ants, under the control of the District court. In the year 1936 theMunicipal court of Milwaukee County boasted of a staff of 12probation officers and one chief probation officer. In MilwaukeeCounty practically every third person convicted in the Municipalcourt is placed on probation. During the year 1936, 336 new caseswere placed in charge of the probation department of Milwaukee'sMunicipal court. During the same year the District court of Mil-waukee County placed 188 new cases under the direct supervisionof the probation department of the Municipal court.49

Reorganization Law of 1937

A careful scrutiny of the duties of the State Board of Controlas it existed prior to October, 1937, will reveal that it exercised a

49 Annual Report for 1936 of the Probation Department of the Municipal Courtof Milwaukee County, Milwaukee, Wis., 1936, pp. 2, 12, 20.

EDWIN C. CONRAD

diversity of functions. The State Board of Control had a 'multitudeof different institutions under its wings. It supervised and man-aged such institutions as the state prison, the state reformatory, theindustrial school for boys, the industrial school for girls, the women'sprison, the school for the blind, the hospital for criminal insane,hospitals for the insane, state public schools, workshop for the blind,tuberculosis camps and sanitariums. As a result of this great di-versity in duties and functions the Citizens Welfare Committee,whose findings and recommendations have been touched upon, advo-cated the creation of a State Department of Corrections to takeover all the correctional work now under the State Board of Con-tro. 50 As a result, Chapter 9 of the Special Session Laws of Wis-consin for the year 1937 was enacted by the Wisconsin legislature.This act created a State Department of Corrections, which consistsof the State Board of Corrections, a Director of Corrections, andsuch officers as may be authorized by the board. The newly createdBoard of Corrections consists of five members appointed by thegovernor for a term of six years,' although some of the early termswill be shortened to two years so as to provide that at least onemember with experience will always be on the board. In the wordsof the act, the powers and duties of the State Board of Correctionsshall be regulatory, advisory and policy forming, and not admin-istrative or executive. The actual administrative and executivework of the Department of Corrections shall be vested in the StateDirector of Corrections, who shall be appointed for an indefiniteterm at a salary not to exceed seven thousand dollars per year.The State Department of Corrections in turn shall be composedof the following divisions:

(1) The Division of Administration.(2) The Division of Parole and Probation.(3) The Division of Criminal Apprehension.

Under this special session act it is contemplated that the duties ofthe State Board of Control will not be transferred immediately tothe State Department of Corrections. Some time will have toelapse before such transfer of duties can.actually be made. Suchtransfer may be made at any time in such manner as the StateBoard of Corrections shall determine with the approval of thegovernor in writing, but in any event the transfer shall take placeprior to January 1, 1939.

50 Public Welfare in Wisconsin, Report of the Citizens' Committee on PublicWelfare, Madison, Wis., February, 1937, pp. 38-47.

LAW OF PROBATION

The net result of this act was the placing of all the correctionalwork in the state under the State Board of Control in the handsof the State Department of Corrections. At the date of this writing,no transfer of duties from the State Board of Control in the handsDepartment of Corrections has been made. Insofar as the proba-tion law itself is concerned, this special session act does not changethe substantive law, but does modify the statutes as to the admin-istrative agency behind the probation law. It is believed that acoordination of all the correctional work in one state departmentwill result in a better administration of our criminal laws. Wis-consin's system of probation will be benefitted by this change. Thisreorganization does not change the system in Wisconsin to anyextent except perhaps to coordinate it more fully with other cor-rectional work, because from now, on one board will be engagedexclusively in correctional work. It is to be remembered that aftera complete transfer of duties has taken place, the probation lawand all of its provisions must read as if the words "State Depart-ment of Corrections" were used in the statutes instead of the words,"State Board of Control."

Cost of Administering the Law

Although it has been suggested that the ideal case load forprobation officers should be approximately fifty per officer, becauseof the lack of funds the case load for each officer under the StateBoard of Control has average about seventy-five.5 ' For the biennialperiod ending 1936, the State Board of' Control reported that theper capita cost per week of operating the probation system was$1.04.2 Curiously enough for the year 1936 the Municipal Court ofMilwaukee County reported the same per capita cost of $1.04."s

The per capita cost per week of taking care of an inmate of theWisconsin State Prison for the same year was $5.53; for the StateReformatory it was $10.22; and for the Milwaukee House of Cor-rection it was $7.08.5- There is, however, too much emphasis placed.upon the saving which probation effects. This should not be a con-

51 Twenty-second Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1934, pp. 86, 87.

52 Murphy, L. F., "Probation and Its Relation to Crime Prevention," Proceed-ings of the First Wisconsin Conference on State and Local Organization for CrimeControl, University of Wisconsin Extension Division, Madison, Wis., 1937, p. 164.

53 Annual Report for 1936 of the Probation Department of the Municipal Courtof Milwaukee County, Milwaukee, Wis., 1936, p. 23.

54 Ibid., p. 23.

EDWIN C. CONRAD

trolling item to any extent. Sociologically, a convict should not beplaced on probation if he is not fitted for such treatment, regardlessof the comparative saving to the state by placing him on probation.Neither should the quotation of the aforementioned figures be anyjustification for the existence of the probation system.

A COMPARATIVE ANALYSIS

It has been indicated that the Wisconsin system of probationis unique in several respects. A general comparison of this systemwith those of other states is difficult in view of the great diversitybetween the various laws. However, it is believed that such acomparative analysis will be helpful in determining jiust how theWisconsin act differs from others. It may be entirely possible thatWisconsin can utilize some of the principles established by the lawsof other states.

Courts Authorized to UJse Probation for Adults

Wisconsin is one of the few states in the Union which restrictsthe use of probation procedure in the case of adults to courts ofrecord. Minnesota and Nebraska, and Wisconsin are the only threestates in the Union making such a limitation. Twenty-four statesauthorize all courts having jurisdiction of the offenses to use theprobation procedure, regardless of whether they are courts ofrecord or not. Other states have designated specific courts tohandle probation.55 The State of Kentucky authorizes only circuitcourts to use this release procedure6 6 Tennessee authorizes alltrial judges in the state having criminal jurisdiction to use thismethod.5 7 Pennsylvania is typical of the majority of the states inthat it allows any court in the commonwealth before whom a personis convicted to utilize the probation release procedure.58 RhodeIsland specifically gives any court in the state power to release aconvict on probation.59

55 Hiller, Francis H., Adult Probation Laws of the United States, New York,1933, pp. 17, 18.

-Acts of the General Assembly of the Commonwealth of Kentucky for 1936,Chapter 30.

57 Tennessee Public Acts, 1937, Chapter 276.5s Report of Supervisor of Paroles to Board of Pardons for the Period June 1,

1931 to May 1, 1934, Harrisburg, Pa., 1934, pp. 10-20.59 General and Public Laws Relating to Probation, Parole and Juvenile Of-

fenders and Criminal Statistics, Rhode Island Juvenile Court Commission, Provi-dence, R. I., 1937, p. 17.

LAW OF PROBATION

Revocation of Probation

So far a diligent search has revealed that Wisconsin is the onlystate which authorizes a supervising agency, the State Board ofControl, to revoke a convicted person's probation where the trialcourt has already sentenced the offender, but has suspended theexecution of the sentence. However, even in Wisconsin in theevent that the judge has not sentenced the offender, he must bereturned to the court in order to have his probation revoked.Even in the case of a sentenced convict, the Board of Control musthave a personal hearing before the probation can be revoked. Inthis respect as to revocation of probation by the State Board ofControl without a court hearing, the Wisconsin system is mostunique. In all the rest of the states some hearing by the court isrequired before the probation may be revoked.6 0

Classes of Offenders Eligible for Probation

It was seen that the Wisconsin act makes all convicts, with afew exceptions, eligible for probation, regardless of whether theyare second offenders or not. It was also seen that up until 1931persons who had previously been convicted of a felony in any courtwere ineligible. After that date the law was amended to take itspresent form.

Rhode Island makes all offenders eligible to receive terms ofprobation regardless of whether they are recidivists.0 l New Yorkmakes ineligible any person convicted of a felony for the fourthtime; Connecticut makes ineligible persons convicted of a felonyfor a third time; California, Colorado, Idaho and Iowa restrict theuse of the law to those persons never previously convicted of afelony. Montana and Pennsylvania make ineligible those previ-ously imprisoned for a crime.6 2 Illinois has recently amended itsstatutes to provide that any defendant not previously convicted ofa crime greater than a misdemeanor, petit larceny and embezzle-ment excepted, may be placed on probation 3 Vermont has an act

- fller, Francis H., Adult Probation Laws of the United States, New York,1933, p. 21.

6,1 General and Public Laws Relating to Probation, Parole and Juvenile Of-fenders and Criminal Statistics, H. I. Juvenile Court Connission, Providence,

L. I., 1937, p. 17.62 Hiller, Francis H., Adult Probation Laws of the United States, New York,

1933, p. 21.,3 Illinois Revised Statutes of 1937, State Bar Association Edition, 1937, Chicago,

Ill., Section 785, p. 785.

480 EDWIN C. CONRAD

in this respect substantially the same as ours. 4 Tennessee makesits law applicable to recidivists. 3 Kentucky adopted the ModelProbation Act, but excepted therefrom persons convicted by a jurywhere the jury fixes punishment at life imprisonment or death.6

The United States has applied the same rule to its district courts.Ohio also allows second offenders the benefits of the act.68 Thiscomparison will reveal that Wisconsin has recognized the fact thateven second offenders in some cases are fit subjects to receiveprobation.

In this subdivision only the classes of offenders eligible to pro-bation have been presented. The only question here presented iswhether or not the person convicted is a recidivist. If he is, undercertain of the state laws, he falls within a class which is ineligibleto receive the benefits of the probation act. In addition to fallingwithin such a class, however, a person might be before the court forthe commission of a particular type of crime, and the court hasactually the power to punish him for that crime. Thus A may beindicted for murder. He is a secoAd offender. Under our Wisconsinlaw the fact that he is a second offender does not put him in aclass which is ineligible to procure terms of probation. However,A in this particular case is ineligible under our probation law be-cause convictions for murder are excepted from the provisions ofthe act. This subdivision, therefore, deals with the type of convictbefore the court and to his classification. He may be ineligiblebecause he falls within the class of recidivists. The subdivisionfollowing will show that the convicted person may be ineligible foranother reason-that being the particular type of crime which hecommitted and for which he is actually before the court.

Offenses to Which Probation Is Applicable

The Wisconsin act applies to all offenses committed with theexceptions heretofore enumerated. It will be seen that these ex-ceptions fall in the classification of serious crimes. For example,public policy in this state has demanded that a person actually

64 Public Laws of the State of Vermont Relating to Public Welfare, 1937,p. 55.

.65 Tennessee Public Acts of 1937, Chapter 76.66 Acts of the General Assembly of the Commonwealth of Kentucky for 1936,

Chapter 30.67 United States Code, Title 18, Sections 725, 726, Washington, D. C., 1935, p. 781.68 Laws of Ohio Relative to Probation, Pardon and Parole, Department of

Public Welfare, 1932, p. 24.

LAW OF PROBATION

before the court for a designated crime of murder cannot be put onprobation. For many years up until 1931, if a person were con-victed of a felony, the maximum punishment for which could ex-ceed ten years in the state prison, he was ineligible. It was seenthat in 1931 the act was amended to apply to all offenses, with theexceptions now existing in our present act.

Nine states make all offenders eligible regardless of the crimethey have committed. Five states grant power to the courts to useprobation procedure in all cases involving any offense, except oneinvolving life imprisonment or capital punishment. Sixteen statesmake no limitation because of the crime committed, except thatthose committing certain specified serious offenses are excluded.Wisconsin falls in this category. Two states, Minnesota and Ala-bama, limit such procedure to all crime convictions where themaximum punishment possible is not more than ten yLars imprison-ment. It was seen that up to 1931 the state of Wisconsin was inthis classification. Three states restrict the use of probation tocases of misdemeanors only. North Carolina recognizes the pro-cedure in cases of a few minor offenses only." Tennessee recentlypassed an act which provides for probation only in cases where thepossible maximum punishment is five years imprisonment in theState Penitentiary.7 The Iowa act applies to all crimes excepttreason, murder, rape, robbery and arson."- In Kentucky, theModel Probation Act was followed and the law applies to all con-victions except convictions by the jury where the jury fixes punish-ment at life or death.7 2 Vermont falls within the same category.-3

Pennsylvania excepts convictions for murder, poisoning, kidnapping,incest, sodomy, rape, assault with intent to rape, arson, and burglaryfrom the operation of the act.7 4 Rhode Island contains the excep-tions for the more serious crimes.' The United States act appliesto all persons convicted of a crime not punishable by death or life

69 Hiller, Francis H., Adult Probation Laws of the United States, New York,1933, pp. 19, 20.

70 Tennessee Public Acts of 1937, Chapter 76.-1 State of Iowa Parole Law, Iowa Board of Parole, Des Moines, Iowa, 1916,

p. 11.72 Acts of the General Assembly of the Commonwealth of Kentucky for 1936,

Chapter 30.-3Public Laws of the State of Vermont Relating to Public Welfare, 1937, p. 54.74 Report of Supervisor of Paroles to the Board of Pardons for the Period

June 1, 1931, to May 31, 1934, Harrisburg. Pa., 1934, p. 16.73 General and Public Laws Relating to Probation, Parole, Juvenile Offenders

and Criminal Statistics, Rhode Island Juvenile Court Commission, Providence, R. I..1937, p. 17.

EDWIN C. CONRAD

imprisonment."6 Illinois in her revision of the statutes, lists thefollowing exceptions: convictions for murder, rape, kidnapping,willful contempt, perjury, subornation of perjury, arson and larcenyand embezzlement where the amount involved exceeds two hun-dred dollars 7

Limits on the Duration of Probation

In Wisconsin, of course, for felony cases the period of proba-tion may not exceed the maximum and may not be less than theminimum period for which the defendant might have been con-victed. In misdemeanor cases, the period of probation shall notexceed the maximum period for which the defendant might havebeen imprisoned.

The laws of other states are so diversified that it is difficult toattempt a general classification. In Ohio the probation provided bythe act shall continue for such period as the judge shall determine,not exceeding five years.-8 In Minnesota the total period of sus-pension of the sentence shall not exceed one year except in thecase of a conviction for crime the maximum penalty for which isimprisonment for a term exceeding one year, and in such a case theperiod of suspension shall not exceed the maximum penalty. 9 InPennsylvania the term shall not exceed the maximum period forwhich the defendant might have been imprisoned.80 The probationperiod in Illinois shall not exceed six months if the offense involvedwas the violation of a municipal ordinance, and not to exceed oneyear in cases involving other offenses.1 The United States actlimits the term of probation to a period not exceeding five years.8 2

Apparently in Vermont there is no limitation, and the court mayprescribe any length of time. 3 In Tennessee in misdemeanor casesthe period of probation is one year, and in felony cases the periodis equivalent to the maximum punishment which could be imposed

76 United States Code, Title 18, Sections 725, 726, Washington, D. C., 1935, p. 781.77 Illinois Revised Statutes of 1937, State Bar Association Edition, 1937, Chicago,

Ill., Section 785, p. 785.78 Laws of Ohio Relative to Probation, Pardon and Parole, Department of

Public Welfare, 1932, p. 25.79 Thirteenth Biennial Report, State Board of Parole of the State of Minnesota,

St. Paul, Minn., 1936, p. 32.80 Report of the Supervisor of Paroles to the Board of Pardons, Department

of Justice, Harrisburg, Pa., 1934, p. 19.81 Illinois Revised Statutes of 1937, State Bar Association Edition, 1937, Chi-

cago, Ill., Section 787, p. 1208.82 United States Code, Title 18, Sections 725, 726, Washington, D. C., 1935, p. 781.83 Public Laws of the State of Vermont Relating to Public Welfare, 1937, p. 54.

LAW OF PROBATION

on the defendant.8 4 Kentucky empowers the trial judge to fix theperiod of probation.8 :

Pre-Sentence Investigation

For some reason, which from a sociological standpoint is unex-plainable, the Wisconsin act has never contained any provision forthe pre-sentence investigation of the convicted person. The pro-bation law cannot be effectively administered unless it is discoveredwhat persons are placed on probation. However, this discussionwill be relegated to the next chapter with the brief comment at thispoint that in this aspect Wisconsin has not really progressed orpioneered.

Administrative Agencies

The Wisconsin system is a combination of county and stateadministration. It is neither a complete state nor a complete countysystem. The Milwaukee system is purely a county system of pro-bation. The plan under the State Board of Control is essentiallya state system. Another way of characterizing the Wisconsin sys-tem is to call it a combination of urban and rural probation, becauseof the fact that outside of Milwaukee County the population is notdense. It was this fact *hich has resulted in the present differentia-tion between Milwaukee County and the rest of the state.

Minnesota comes closest to the form of our administrative

system, because it too has a combination of rural and urban" pro-bation., Being a sister state with practically the same conditionsas Wisconsin, it was natural that these two systems should growside by side. Twenty-one states provide for some form of stateparticipation, chiefly supervisory, in probation work, either adultor juvenile or both. It was seen, of course, that in Wisconsin thestate has control of adult probationers convicted of felonies ex-clusively, and that it has no jurisdiction in juvenile probation work,except as the trial court in its discretion may give it jurisdiction.In contrast, Rhode Island seems to have a complete state probationsystem, since the State Probation officer, appointed and directedby the State Public Welfare Commission, appoints and directs the

84 Tennessee Public Acts of 1937, Chapter 716.s5 Acts of the General Assembly of the Commonwealth of Kentucky for 1936,

Chapter, 30.s6 Thirteenth Biennial Report of the State Board of Parole of the State of

Minnesota, St. Paul, Minnesota, 1936, p. 32.

484 EDWIN C. CONRAD

work of all probation officers9 7 Vermont follows the plan of Rhode

Island.8 s In Indiana, Oregon and Massachusetts there are separate

state departments which supervise and aid probation work and aid

in its development. In New York the Division of Probation of the

Department of Correction with a director of probation as executive

has general supervision of probation officers throughout the state.

The director has power to formulate rules which when approved

by the commissioner of correction have the full force and effect of

laws. 9 It will be noted, therefore, that direct work by the state

and not only supervision, and the county system in Milwaukee

County, are some of the outstanding features of the Wisconsin act.

Conditions

The Wisconsin act provides that the conditions of probation

shall be those imposed by the State Board of Control in cases-ofpersons paroled from the State Prison or reformatory. There isnothing in the parole law which, makes any particular conditionsnecessary.9" Therefore, conditions on which probation is grantedin the case of felonies are determined by the State Board of Control,outside of Milwaukee County. In those cases not under the super-vision of the State Board of Control, the trial courts impose suchconditions as they desire. Neither does the Ohio act determinewhat the terms of probation shall be, leaving that function to thecourt."1 The new Kentucky act specifically provides the conditionsof probation which may be imposed in addition to those added bythe court.2

Violations of Municipal Ordinances

When the original act of 1909 was enacted by the legislature,probation could be granted in cases of persons convicted of violat-ing village, city, county or municipal ordinances. However, in

87 General and Public Laws Relating to Probation, Parole, Juvenile Offendersand Criminal Statistics, Rhode Island Juvenile Court Commission, Providence,R. I., 1937, p. 17.

88 Public Laws of the State of Vermont Relating to Public Welfar6, 1937,p. 53.

89 Hiller, Francis H., Adult Probation Laws of the United States, New York,1933, pp. 39-43.

90 Wisconsin Statutes of 1937, Section 57.06.91 Laws of Ohio Relative to Probation, Pardon and Parole, Department of

Public Welfare, 1932, p. 24.92 Acts of the General Assembly of the Commonwealth of Kentucky, for 1936,

Chapter 30.

LAW OF PROBATION

1913 the law was changed, and from that time on probation couldonly be granted in cases of crimes against the state, which is alsotrue of the present statutory law. 3 Some of the other states inthe Union have authorized judges to grant probation in cases ofviolations of municipal ordinances. Thus, Illinois specifically grantsthat right. 4 So does Minnesota.05

The Wisconsin Act and the Model Act

The National Probation Association has proposed for adoption

a model law for adult probation."0 Kentucky has just enacted this

act substantially in toto.9 7 The Model Act applies to any personcharged with a crime. The Wisconsin act, of course, comes intooperation after a person has pleaded guilty or has been foundguilty of the charge, and in addition thereto there are certain ex-ceptions in the Wisconsin act heretofore noted which have beeneliminated in the Model Act. The Model Act also provides for apre-sentence investigation, which the Wisconsin act does not at-tempt to do. The Model Act has suggested terms of probationwhich in Wisconsin are left to the State Board of Control to de-termine. The Model Act does not differentiate between feloniesand misdemeanors as does the Wisconsin act. The Model Actauthorizes the court to fix the period of probation, there being nolimit to such period. Wisconsin, of course, has limited the periodsof probation as was seen in the prior discussion. The Model Actauthorizes all courts to use this procedure; the Wisconsin act, onlycourts of record. Under the Model Act only the court shall havethe power to revoke the probation where the convicted person hasviolated his conditions, whereas in Wisconsin in felony cases wherethe court has pronounced sentence at the time of conviction, theState Board of Control has the duty to revoke probation, thusassuming a function which in most laws is left to the courts. In allthese respects the Wisconsin act differs greatly from the Model Act.

93 See section of this article entitled, Evolution of Our Modern Law of Pro-bation.

94 Illinois Revised Statutes of 1937, State Bar Association Edition, Chicago, Ill.,1937, Section 785, p. 1208.

95 Mason, William H., Minnesota Annotated Statutes, St. Paul, Minn., 1927,Section 9936, p. 1969.

- For a copy of the Model Act see Hiller, Francis H., Adult Probation Lawsof the United States, New York, 1933, pp. 49-56.

97 Acts of the General Assembly of the Commonwealth of Kentucky for 1396,Chapter 30.

486 EDWIN C. CONRAD

The Wisconsin Act and the English Act

Like the Model Act the English statutes on probation ap-parently apply to all persons convicted of crimes without anyexceptions such as in the Wisconsin act. The English act providesthat when any person has been convicted of any offense punishablewith imprisonment, the court may place the convicted person onprobation. The period of probation shall not exceed three years.The court may also require the probationer to enter into a recog-nizance with sufficient sureties to guarantee that the terms of pro-bation shall be carried out. If anything, the English act correspondsmore closely to the Model Act than to the Wisconsin act.98

In Retrospection

This somewhat cursory comparison between the various pro-

bation acts in this country and England is not intended to be acomplete picture of probation systems. It is merely intended to

show how the Wisconsin act has taken its own course and has ac-quired certain ideas which are peculiar to this state.

SoME MOPE CHANGE

Will Rogers once said that when two Americans get togetherone will invariably assume a sort of a chairmanship and call ameeting to order. In this same humorous vein it may not be amiss

to mention another peculiar characteristic of the American people-the doctrine of "There ought to be a law." Men trained in legallore fully know the chaotic condition which has resulted as a resultof the volumes and volumes of new laws "being added every year.However, despite this fact, it may not be presumptuous to suggesta few changes in our probation act in the light of the experienceof those administering it. Legislation is never static, but dynamic.Perfection is change. Our goal is the perfection of law, among otherthings. Stability cannot satiate men's appetites when there is vastroom for improvement. It is with this spirit that the followingchanges in the probation act of this state are recommended.

(1) Chapter 57 should be amended to make mandatory apre-sentence investigation.

Dr. John L. Gillin, America's eminent criminologist, has always

emphasized this aspect of probation work. He says:

9S Hailsham, Lord, Halsbury's Laws of England, Second Edition, London, 1937,Vol. 9, p. 232.

LAW OF PROBATION 487

"Good probation work must be based on thorough investigation.Unless this be done persons will be placed on probation who should besent to an institution, and offenders will be sent to institutions whoshould be placed on probation. Careful investigation is necessary forany adequate treatment of the criminal! '" 9

The National Probation Association has very clearly recognizedthis need and has recommended the following provision, being Sec-

tion 2 of the Model Probation Act:

"When directed by the court the probation officer shall fully investi-gate and report to the court in writing the circumstances of the offense,criminal record, social history, and present condition of any defendant.No defendant charged with a felony and unless the court shall d&rectotherwise in individual cases, no other defendant shall be placed onprobation or released under suspension of sentence until the report ofsuch investigation shall have been presented to and considered by thecourt. Whenever practicable, such investigation shall include physicaland mental investigation of the defendant. If such defendant is com-mitted to any institution a copy of the report of such investigation shallbe sent to the institution at the.time of commitment"10

Such requirement is bound to eliminate a lot of criticism onthe part of the public because it has a sociological basis. Probationis successful only insofar as the right persons are chosen to receive

its benefits. Who are the right persons, of course, depends upon a

thorough invetigation of each case: It is a sad commentary on theWisconsin law of probation to note that this progressive state has

so far failed to recognize this axiomatic principle, although actually

many of the judges throughout the state are insisting on pre-sen-

tence investigation.- (2) Chapter 57 should be amended to give the courts power

to place the defendant on probation for an indefinite period.

Dr. Gillin is of the opinion that the term of probation should

not be fixed in advance, because probation should be continued

until the court and the probation officer are convinced that the

probationer shall conduct himself well or else the probation is hope-

less.10 1 The present Wisconsin act tends to be too inelastic. A

felon may not be put on probation for a period of time exceeding

the maximum term for which he might have been imprisoned and

for a term not less than the minimum term for which he might

have been incarcerated. In case of misdemeanants his probation

99 Gilln, J. L., Criminology and Penology, New York, 1926, p. 83L1oo See A Model Probation Act in Huller, Francis H., Adult Probation Laws in

the Uhited States, N. Y, 1933, p. 49.i0 Gillin, John L, Criminology and Penology, New York, 1927, p. 832.

488 EDWIN C. CONRAD

term may not exceed the maximum sentence, which is usually six

months. It was seen that under the Model Act the period of pro-bation is determined by the court and may be continued or ex-

tended by the court without any definite time limitation. Proba-

tion work should be individualized and each case determined on itsown merits. This calls for a law providing for elastic terms to befixed by the court. From a sociological standpoint, no definite termof probation should be fixed in advance. When the court is actuallysatisfied that a probationer is conducting himself as a normal indi-

vidual and will be able to conduct himself in the future, it willdischarge him from probation. In some cases of felonies it wouldbe exceedingly desirable to have the defendant on probation for alonger period than three years, and the case may demand it. Inothers, the court might well discharge the felon probationer beforethe end of the first year, which at the present time it is not em-

powered to do.

(3) Section 57.04 of the Statutes should be amended to extendthe permissible period of probati6on for any period of time up to

two years.

This suggested amendment is offered only in the event that

suggestion (2) is rejected. As heretofore stated, the usual penaltyfor a violation of law denominated a misdemeanor is a maximumof a $100 fine or six months in jail or both. Therefore, for mis-demeanants the term of probation usually does not exceed sixmonths. Obviously, no effective plan of probation can operate suc-cessfully in such a short span of time. An amendment of the lawas suggested would permit the State Board of Control to supervisemore cases involving misdemeanors than it does at the present time.It is because of the short period of time designated in probation

. cases concerning misdemeanants that the State Board of Controlhas been so reluctant in traversing this field of probation.'0 2 Theresult has been the localizing of all misdemeanant probation workin the local courts and not the State Board of Control. The twoyear period would be merely the maximum period, and a court inindividual cases could fix a short time if it saw fit so to do.

(4) Section 57.04 of the Statutes should be clarified to the

extent of determining just where the administrative power lies.

The Director of Probation and Parole thinks there is some

102 Twenty-second Biennial Report of the State Board of Control ot Wisconsin,Madison, Wis., 1934, pp. 91, 92.

LAW OF PROBATION 489

doubt on this point at the present time.10 3 By way of illustration,A, a person convicted of a misdemeanor, is placed on probation tothe. State Board of Control. If he were a felon probationer, thereis no doubt but that from that time on he is under the exclusivejurisdiction of the board and subject to its rules and regulations.But being a misdemeanant, the section may be interpreted in twoways: it may mean that the court continues to act as the admin-istrative agency; or it may mean that the court having elected tohave the person put under the charge of the board, loses jurisdictionas to administration from that time on. Since this ambiguity exists,it should be removed. However, as a member of the Wisconsin bar,it is my opinion that the court in such a situation always remainsthe -administrative agency.

(5) Section 57.03 of the Statutes should be amended to pro-vide that in the event a person under the Board has violated theterms of his probation, the State Board of Control may appoint anExaminer to determine whether such person's probation should berevoked, giving the Examiner the right to hold hearings anywherein the state, with a right of appeal to the State Board of Controlfrom the ftndings of such Examiner.

The present ection, of course, makes it mandatory that beforethe board can revoke probation, it must conduct a full investigationand give the defendant a personal hearing. As early as 1934 L. F.Murphy, Chief Probation Officer of Wisconsin, made the followingcomment regarding this matter:

"Obviously this is impracticable from an administrative standpoint

because the State Board of Control cannot be expected to spend thenecessary large amount of time required to make these hearings, andthe expense of transporting every person accused of violation and thenecessary witnesses to Madison would be too great to receive any con-sideration. The right of a defendant to a hearing cannot be deniedbecause even with the care taken by probation officers an error in factor in judgment may creep in. No solution of the problem is presentedat this time, but it is hoped that some legislation may be developedwhich will clear up this matter."'10 4

The plan suggested is derived from the procedure followed incompensation cases. But it would seem to be very practical and

103 Twenty-second Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1934, p. 92.

oim Twenty-second Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1934, p. 92.

490 EDWIN C. CONRAD

not costly and at the same time assure the defendant of a fairhearing, with a right to appeal to the board itself.

(6) A new section should be added to Chapter 57 to providethat all case records and confidential reports given to probationofficers shall be deemed privileged material and not subject to beexamined as a public record.

It has been suggested by the State Probation Department thatmuch of the material in their files is very personal and of a con-fidential nature.10 5 An effective case method depends upon thor-ough investigation. People from whom information is derivedshould be free to speak and will do so if they know that the informa-tion they give is in the nature of a privileged communication. Adraft of such privileged communication statute is contained in Sec-tion 9 of the Model Adult Probation Act:

"All information and data obtained in the discharge of official dutyby any probation officer shall be privileged information, shall not bereceivable as evidence in any court, and shall not be disclosed directlyor indirectly to anyone other than. to the judge or to others entitledunder this act to receive report, unless and intil otherwise orderedby such judge."'- 5

(7) Chapter 57 should be revised so that all courts in thestate having criminal jurisdiction shall have the powers granted bythe act; furthermore, violations of municipal ordinances should beincluded within the scope of the act.

The present distinction between courts of record and courts notof record is arbitrary and without foundation. Many of the crim-inals in the state gain their first experience in a justice court,which is not a court of record. The justice may imprison theperson in the county jail, in the usual cases for a period not ex-ceeding six months. The county jail has been termed the breedingplace of crime. Yet the justice is powerless to place the convictedperson on probation for the reason that the present act does notempower him so to do. If a court of record is authorized to usethe procedure for the same type of crime, there is no inherentreason why this same privilege should not be extended to thosecourts not of record.

Then, too, many of the municipal ordinances at the presenttime provide for certain penalties for violations. In many instances

105 Twenty-third Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1936, pp. 56, 57.

1- See Hiller, Francis H., Adult Probation Laws of the United States, N. Y.,1933, pp. 52 53.

LAW OF PROBATION 491

ordinances have reached the dignity of state laws in defining crimes.The city of Madison has an ordinance which empowers a court topunish a person keeping a house of ill fame, by imprisoning himin the county jail for one year." 7 The state law also providespunishment for such a crime. 08 At present probation is possiblefor the person convicted of the statutory crime, but not for theperson convicted of the municipal ordinance. A crime from thesociological standpoint, is "an act which is believed to be sociallyharmful by a group of people which has the power to enforce itsbelief. 0 9 Within the meaning of this definition a violation of a cityordinance is just as much of a crime as a violation of a state law,and probation should be available in both cases.

(8) A careful study of the juvenile probation law should bemade with a view of revising the entire sections pertaining tojuvenile probation.

The conflict between the various courts administering thejuvenile law has been discussed in the statutory section. No ade-quate attempt has been made in Wisconsin to date to really ex-amine the workings of the juvenile probation law. As it now standsthere is practically no correlation between adult probation andjuvenile probation. The probation law pertaining to juveniles wasenacted thirty-seven years ago, and yet-today after all these years58 out of the 71 counties in the state are without paid probationofficers for juveniles, and in many cases without even responsiblevolunteers." 0 A standard juvenile court law has been recom-mended by the National Probation Association, and perhaps manyof its features can well be considered."' At any rate it seems thatsome revision must be made in our juvenile probation laws. Whatremains to be done will depend on what research reveals.

The foregoing changes seem to be the major ones to be con-sidered in the attempt to reach an ideal probation system in Wis-consin. Perhaps in the long process of legislative evolution a timewill come when some of these fundamental principles will beenacted into law in this state.

2- The General Ordinances of the City of Madison, Madison, Wis., 1931, Sec-tion 28.08, p. 486.

108 Wisconsin Statutes of 1937, Section 351.35.09 Gillin, J. L, Criminology and Penology, N. Y., 1926, p. 13.

1lo Twenty-third Biennial Report of the State Board of Control of Wisconsin,Madison, Wis., 1934, p. 55.

11 A Standard Juvenile Court Law, Prepared by the Committee on StandardJuvenile Court Laws of the National Probation Association, National ProbationAssociation, N. Y., 1933.